Vito v. Town of Simsbury

*264 Beach, J. The specifications provided in detail for the construction of a macadam road which was to be paid for, as the work progressed, by the highway commissioner. It does not appear whether this part of the work has been paid for solely by the State as a trunk line, or whether the town is liable for its proportion of the same. The only matter with which this action is concerned is whether the defendant town is liable to pay the balance due on account of the retaining-wall, which is separately specified for in detail, and which, according to the specifications and the contract, is “to be paid for solely by the town.” The written contract was signed by the first selectman only, and is not the contract of the town. The plaintiff does not rely on the writing, but relies on the claim that the wall was built under a supposed contract with the town; that the town, through its selectmen, had knowledge that the wall was being constructed under a supposed contract that the town would pay for it; that while the work was in progress the town recognized the existence of such an agreement and'assented to the continuance of the work by paying $935 on account; that the work itself is a permanent improvement, which has been retained by the town as part of a highway; and that the offer to pay for the wall, except for the portion which extended beyond the town line, was to that extent an acceptance of the finished work on the terms specified in the imperfectly executed' contract. The defendant town, in its answer to the amended complaint, denies that it ever authorized the acceptance of the work, or knew that it was being done for the town, and alleges that the part payment above referred to was made under a separate special contract; but this defense is disposed of by the specific finding of the court that the payment in question was “on account of the work now in dispute,” and that the extra work *265 covered by the special contract has been paid for and is not now in controversy. It was also claimed in defendant’s answer that the improvement in question was undertaken by the highway commissioner as a trunk line, for which the town was in no way responsible; but the court has found that the commissioner proceeded under § 1 of the Act of 1907, and so far as the wall is concerned, the papers themselves expressly provide that it is to be paid for by the town. The defendant town also claims that it cannot be made liable because the work was undertaken under the authority of the Good Roads Acts of 1907 and 1909, which prescribe the manner in which towns may enter into such contracts, and impliedly prohibit them from entering into such contracts in any other manner, and which also prescribe the proportionate amount of the total expense to be paid by the towns. It is well settled that municipal corporations cannot be made liable on implied contracts which would be ultra vires if attempted to be made in express terms, or which they are forbidden by statute to enter into except in a particular manner. Kelley v. Torrington, 80 Conn. 378, 383, 68 Atl. 855; McDonald v. New York, 68 N. Y. 23. On the other hand, there is no reason, in the absence of statutory objection, why the general obligation to do justice should not bind a town so as to make it liable for the reasonable worth of a permanent improvement constructed under an imperfectly executed contract and retained by the town as part of a highway. Jones v. Marlborough, 70 Conn. 583, 590, 40 Atl. 460; Argenti v. San Francisco, 16 Cal. 255; Nelson v. New York, 63 N. Y. 535. In so far as the provisions of the Good Roads Acts of 1907 and 1909 are mandatory, and are in the nature of conditions precedent, they must doubtless be com *266 plied with -in respect of contracts which the town is not otherwise authorized to make. Kelley v. Torrington, 80 Conn. 378, 382, 68 Atl. 855. We do not think, however, that any statutory requirement has been omitted in this case, which is in the nature of a condition precedent to the creation of a contractual obligation on the part of the town. The provision for a written application by the selectmen was properly treated by the trial court as a provision for the protection of the commissioner, which could be waived by him. It is in order to give the commissioner some written evidence of the corporate assent of the town to the particular improvement in question, before he puts the State to the expense of preparing plans and specifications. But the obligation of the town to proceed further in the matter is not affected one way or the other by omitting the formality of reducing its application to writing; for it is still optional with the selectmen to execute the contract or not, after it is awarded. Glover v. Litchfield, 86 Conn. 486, 86 Atl. 4. The objection that the selectmen were not notified of the time and place of opening the bids is of no importance, in view of the finding that the town was in fact represented at said time and place by its first selectman. The other objection, founded on the lack of apportionment, that the town cannot be made liable except for a definite fractional part of the total cost, does not touch the inception of the obligation, but affects only its extent. It is also to be observed that the plaintiff is not seeking to recover upon an implied contract for the construction of an improved highway under the Good Roads' Act, the cost of which is to be apportioned between the town and the State. This action is on an implied contract of the town to pay the whole reasonable worth of the retaining-wall. The town did not derive *267 its sole authority to contract for this retaining-wall from the statute; and may, therefore, subject itself to a liability to pay for it, independently of the statute. Our conclusion is that the attempted contract for the retaining-wall was not illegal for failure to comply with any necessary statutory prerequisite, but that the only substantial objection is that it was not properly executed. The plaintiff concedes the force of this objection, and avoids it by founding his claim on the implied obligation to pay arising out of all the circumstances. Then the only remaining question is whether the record discloses the corporate assent of the town to take the benefit of the plaintiff’s work and materials under circumstances which raise a legal obligation to pay what they are reasonably worth; and on this question we think that the findings of the trial court are conclusive. They show that the work was inspected from time to time by two of the selectmen; that the town paid $935 on account while it was in progress; that the selectmen, after the wall was finished, offered to pay the balance of the plaintiff’s bill according to the terms of the improperly executed contract, provided he would throw off $100, being the calculated price of the work done in Bloomfield. The finding of the court, that it was agreed that the town, if indebted at all to the plaintiff, was indebted to him in the sum of $1,934.79, with interest from June 1st, 1911, makes it unnecessary to determine whether the plaintiff could or could not, in the absence of such a finding, recover for that part of the wall located outside of the defendant town. There is no error. In this opinion the other judges concurred.